Case Law: 28th Oct, 2018

27 October, 2018

 
DR. S.K. JHUNJHUNWALA V. MRS. DHANWANTI KUMAR & ANR. (CIVIL APPEAL NO. 3971/2011)
 
ORDER DATED: 1.10.2018
 
FACTS

The Complainant (Respondent No. 1 herein) who was residing in Kolkata had abdominal pain in June 1996. As she did not get any relief from local doctor, she consulted Dr. Lakshmi Basu who advised the patient to undergo certain tests like X-Ray, PA test, USG etc and after the reports. After going through the reports, Dr. Basu opined that the patient had 2 calculi in her gall bladder which could be removed only by Laparoscopic surgery and asked the patient to approach a good Surgeon.
Dr. S.K. Jhunjunwala, the Appellant, after going through the reports and after examining the Patient, advised her for laparoscopic surgery. Accordingly, the patient got admitted to Life Line Diagnostic Center and Nursing Home, the Respondent No. 2 in the present case.

On 8.08.1996, the laparoscopic surgery was done and after   that   open   surgery   and removed   the   Gall   Bladder. The patient was in the hospital for about a week   or   ten   days   for   postoperative   care   and thereafter she was discharged.

However, in December 1997, the Respondent No. 1 filed a Consumer Complaint against the Appellant and the said Hospital mainly on the ground that:
  1. Firstly, she   had   never   given   her   consent   for performing   general   Surgery   of   her   Gall   Bladder rather   she   had   given   consent   for   performing laparoscopy   Surgery   only   but   the   appellant performed general surgery of her Gall Bladder which 5 resulted in putting several stitches and scars on her body
  2. Secondly, even the surgery performed was not successful inasmuch as she thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc
  3. Thirdly, in June 1997, she was therefore required to undergo another surgery in Sir Gangaram Hospital, New Delhi for removal of stones which had slipped in CBD
It was alleged that all these ailments were incurred due to the negligence of the appellant, who did not perform the   surgery   properly   and   rather   performed   the surgery   carelessly   leaving   behind   for   respondent No.1   only   mental   agony,   pain,   harassment   and money loss and hence she filed a complaint to claim the   reasonable   amount   of   compensation
 
DEFENCE OF THE DOCTOR
  1. The Appellant Doctor refuted all the allegations and submitted that proper consent of the patient for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery
  2. He further stated that stated   that   after   starting   laparoscopic surgery,   he   noticed   swelling,   inflammation   and adhesion   on   her   Gall   Bladder   and,   therefore,   he came out of the Operation Theatre and disclosed these facts to respondent No.1's husband and told him that in such a situation it would not be possible to   perform   laparoscopic   surgery   and   only conventional procedure of surgery is the option to remove   the   malady.  
  3. The doctor denied all the charges of negligence and he took all precautions to the best of his ability and capacity.
 
HELD
  1. The State Commission dismissed the Complaint on merit and therefore the Respondent No. 1 approached the National Commission.
  2. The National Commission allowed the Complainant’s appeal and held the doctor negligent and saddled compensation of Rs. 2 lakhs on him. Thereafter Appellant being aggrieved  by the order passed by the National Commission approached Hon’ble Supreme Court
  3. Their Hon’ble SC allowed the Appeal in favour of the Appellant Doctor after perusing the documents and evidence on record and referred to various judgments on this point
  4. The Court did not accept the allegation of the patient that she gave consent only for Laparoscopic surgery and not for the Open Surgery. The Court relied upon the terms of consent form itself, which gave every authority to the Appellant Doctor to perform open conventional surgery on the same organ if there would have been some abnormalities and thus the Court held that there was no need for having separate consent as alleged by the Complainant-patient
  5. The Court agreed to the evidence on record which proved that the doctor chose or shifted to Open surgery as he noticed that there was some inflammation, adhesion and swelling on Gall Bladder and therefore he came out of operation theatre and informed Respondent’s husband and explained him everything and only after her husband gave consent, the conventional surgery was performed. Thus it was not the case of an unauthorized act of the Doctor. Moreover, it was the clear case of emergency and it was done to save the life of the patient and there was no time for doctors to wait till the patient would gain consciousness to take decision on her own. The Hon’ble Court further observed that it was surprising that the patient never raised the issue of consent to the doctor of the Hospital, nor did her husband raise the issue after the operation.
  6. The Hon’ble Court further observed that even the National Commission has held that the Patient had failed to prove any kind of negligence that can be attributed to the Doctor nor has any medical expert opinion been placed on record in support of her claim. The Court also relied upon the observations of the National Commission that the Respondent No. 1 failed to prove with the help of medical evidence that the stones which were removed in Sir Gangaram Hospital were the same which the Appellant failed to remove.
  7. Regarding allegations of subsequent ailments of the patient as a result of the operation, Hon’ble SC held that there has to be a direct nexus with   these   two factors   to   sue   a   doctor   for   his negligence.  Suffering of ailment by the patient after surgery is one thing, it may be due to myriad reasons known in medical jurisprudence whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in the field to prove the latter is required.

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